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Restitution for Internal Investigation Costs Under the MVRA
The third quarter is about to close, and your legal department remains within its fiscal year budget. Then the phone rings, and your priorities for the rest of the fiscal year and budget for them are blown. It's a senior member of the internal audit team on the line reporting that her group has detected irregular invoicing with four different vendors. What's more, she says, the activity of concern, while seemingly ending last fiscal year, appears to have occurred for more than three years with an aggregate amount at issue approaching seven figures. Countless questions are presented with few verifiable answers. The problem is immediately transformed from an audit issue to an investigation with possible criminal consequences.
Fast forward over the next several months to the conclusion of the internal investigation that outside counsel conducted at your direction. The good news findings are that the managers who were involved in embezzling money from the company through a fraudulent invoicing scheme are gone, and the scheme has ended. The bad news findings are that they stole nearly $1 million, and the cost of the investigation ' company costs and outside counsel costs ' pushed the loss figure higher. Legal expenses will continue, because the local U.S. Attorney's Office has notified you of an ongoing investigation into the conduct that your investigative team uncovered.
If the government's investigation concludes with a conviction of one or more of the perpetrators, will your company be able to recover its internal investigation costs through the criminal process? The company is, after all, a victim of fraud, and one of the statutory rights afforded to crime victims is “full and timely restitution.” The answer is not as clear as it should be.
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